Would this be a wrongful or unfair dismissal?

Takeaway_Addict

jonnygee2 wrote: »

In fairness, most small employers will learn by experience and as needed. There's an unending amount of knowledge and skills needed to run a business and employment law is rarely high priority.

In fact I thought for a small company they had done pretty well, with a disciplinary hearing and an investigation, and checking here for the correct approach. I think in a lot of small companies you just get told you've been fired and that's that.

Fair point.

SeagullFTB

Firstly, thank you everyone for your help.

And thank you jonnygee2 for your positive comments. As a very small business with only a handful of employees, employment law does take a back seat. This will be the first dismissal (except for failing to pass probation) in the companies history, so we wanted to get it as right and as fair as we could.

getmore4less

There is an implied term in all contracts of employment

mutual trust and confidence.


There are a number of actions that have broken that trust.

Falsifying time sheets, if it turns out they were after investigation.
Measurable decline in output.
...

Could be time to review your approach to HR with a view to employing a specialist on a add hoc basis for advice and to bring in for events like this.

This can be advantageous on 2 grounds.
It introduces a level of independence on investigations.
It reduces the distraction to the main goal of running the business.

There is a cost but that can be worth it.

System

I've looked at your questions and sincerely hope you haven't done anything yet. My solicitor once said to me during a legal battle, I'm like a "monkey with a machine gun"...this is potentially you...

SeagullFTB wrote: »

- Falsifying time sheets. Caught twice (10 minutes and 15 minutes). When caught the second time, he made the 15 minutes up after work. Excellent. Got any proof?
- Lying about other employees. Caught and witnessed. Conjecture, so what. Lies get told all the time.
- Since raising our concerns in an informal chat, his work rate has decreased so much that we are now losing money on his work. If we suddenly increase our fees, we risk losing the client. Ok - follow normal company procedure in this case. Performance management needed.
- We had an office theft, but we lacked evidence Therefore this doesn't count either.

I have a few questions...

1. Do we have grounds for dismissal? IMO No.
2. Is it true that he can't claim unfair dismissal as he hasn't been employed for 2 years? Not sure, but the odds are stacked heavily in favour of the employer in the first two years, so possibly.
3. Can he claim wrongful dismissal? The employment contract states that our disciplinary process usually involves a first warning and final warning before dismissal? The only thing I can see you getting him on is performance. Follow the performance management procedure to get him out. This should be easier within two years employment.
4. Do we have grounds for gross misconduct? No. What for? You have no evidence!!

We're a very small company without a dedicated HR I'd say you need one, but generally they're pretty crapola in my view anyway. department, so any help would be appreciated.

Comms69

andydownes123 wrote: »

I've looked at your questions and sincerely hope you haven't done anything yet. My solicitor once said to me during a legal battle, I'm like a "monkey with a machine gun"...this is potentially you...

Less than 2 years employment. Here is your notice, please leave.

Ozzuk

andydownes123 wrote: »

I've looked at your questions and sincerely hope you haven't done anything yet. My solicitor once said to me during a legal battle, I'm like a "monkey with a machine gun"...this is potentially you...

I'll start this by saying I work in IT, not HR, but as senior management we've just been trained in disciplinary and I think you are pretty wrong on most points.

Proof is not a requirement, just genuine belief. At tribuneral the test would be given the outlined issues would most companies on balance reach the same conclusion and action. Suspected theft? Timesheet fraud? Here's the door...

General_Grant

Comms69 wrote: »

Less than 2 years employment. Here is your notice, please leave.

Being pedantic but the two years relates to unfair dismissal. It does not apply to wrongful dismissal.

BrassicWoman

SeagullFTB wrote: »

This will be the first dismissal (except for failing to pass probation) in the companies history, so we wanted to get it as right and as fair as we could.

You can start by not prejudging the outcome and posting that is IS a dismissal.

Currently it MIGHT be.

Comms69

General_Grant wrote: »

Being pedantic but the two years relates to unfair dismissal. It does not apply to wrongful dismissal.

Yes but the claim for wrongful dismissal is much more limited in scope.

- Wrongful dismissal occurs most commonly where an employer dismisses an employee without notice or with insufficient notice under his or her contract of employment. Damages awarded usually equate to the value of the employee's pay and benefits during the period of notice that the employee would have been given, had the contract been terminated lawfully.

SeagullFTB

BrassicWoman wrote: »

You can start by not prejudging the outcome and posting that is IS a dismissal.

Currently it MIGHT be.

It is a dismissal now and at the point of writing this morning, the decision had been made. The decision was made during a meeting between my business partner and I after the disciplinary hearing yesterday.

andydownes123 wrote: »

I've looked at your questions and sincerely hope you haven't done anything yet. My solicitor once said to me during a legal battle, I'm like a "monkey with a machine gun"...this is potentially you...

We've dismissed the employee under gross misconduct for falsifying their time sheets. The evidence we had was:

- Time sheets where the work carried out didn't match the time between starting and finishing, including overtime that was paid based on the times given.

- An email from the employee claiming he had worked overtime, not realising he was seen out of the office during that time. His computer log confirms that it is wasn't active at the times he had claimed to work.

- Several time sheets where either the start or finish time were incorrect through 'human error' as he claimed.